92 Decision Citation: BVA 92-02053
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-40 193 ) DATE
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THE ISSUE
Entitlement to service connection for sleep apnea, secondary
to Cushing's syndrome with buffalo hump and plethoric
obesity.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Horrigan, Counsel
INTRODUCTION
The veteran served on active duty from October 1958 to
September 1960, and from October 1960 to July 1978. This
matter comes before the Board on appeal from a May 1991
rating action from the St. Petersburg, Florida, Regional
Office (hereinafter referred to as RO). The notice of
disagreement was received on June 6, 1991. The statement of
the case was issued on July 3, 1991. The case arrived at
the Board of Veterans' Appeals on August 19, 1991, and was
docketed for appeal on August 21, 1991. The veteran has
been represented during his appeal by The American Legion,
to which the file was referred. That organization submitted
written arguments to the Board on October 18, 1991. The
case is before the Board for appellate consideration at this
time.
REMAND
The veteran's representative has indicated that the veteran
is also seeking service connection for diabetes mellitus,
impotence, a psychiatric disorder, a headache disorder, and
an ulcer disorder as secondary to his service-connected
Cushing's syndrome with buffalo hump and plethoric obesity.
In a June 1991 rating decision, these issues were denied on
the basis that the claimed disorders were not present in
service. They have not been adjudicated, however, on the
basis of secondary service connection.
In view of the above, and given the duty of the Department
of Veterans Affairs to assist the veteran in the development
of his claim under the provisions of 38 U.S.C. 5107(a)
(formerly 38 U.S.C. 3007(a)), the Board believes that
further development of the evidence is necessary prior to
appellate consideration of this case. It is, therefore,
REMANDED to the agency of original jurisdiction for the
following action:
The agency of original jurisdiction
should adjudicate the issues of service
connection for diabetes mellitus,
impotence, a psychiatric disorder,
headaches, and an ulcer disorder as
secondary to Cushing's syndrome with
buffalo hump and plethoric obesity. If
these benefits are denied, the veteran
and his representative should be given a
supplemental statement of the case in
regard to these issues and afforded a
reasonable opportunity to respond.
Thereafter, the case should be returned to this Board for
its consideration, if in order. No action is required of
the veteran unless he is so informed. The purpose of this
REMAND is to assure that he receives due process of law. By
this REMAND, the Board intimates no opinion as to the
outcome warranted in this case.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
H. H. CLARK CHARLES E. EDWARDS, M.D.
38 U.S.C. § 7102(a)(2)(A) (1989) (formerly § 4002(a)(2)(A),
recodified in 1991) permits a Board of Veterans' Appeals
Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting
assignment of an additional Member to the Section when the
Section is composed of fewer than three Members due to
absence of a Member, vacancy on the Board or inability of
the Member assigned to the Section to serve on the panel.
The Chairman has directed that the Section proceed with the
transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
Under 38 U.S.C. 7252 (formerly 38 U.S.C. 4052), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Veterans Appeals. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.